RIP Abe Doe

You may know lots of people like that, but in a client, it's relatively rare. Clients are often terrified and usually nervous about annoying their lawyers, and it can take years to get one to really open up. Not Abe.

I had the privilege of representing Abe when he was sued for an insulting tweet. From the start he wasn't afraid to make it clear what he thought of "libertytarians" (as he delighted in calling us) and in cheerfully bashing whatever I had written about recently. His openness about this was such that I was even comfortable giving back as good as I got, which I rarely do with clients. So, as Abe proceeded through the stressful and oppressive course of litigation, we traded barbs over our respective viewpoints. He was extraordinarily literate and inventive and nobody's pushover opponent in an argument. Beneath Abe's acerbic wit was a passion about issues and people, a dogged sense of right and wrong, and a contempt for bullies. We agreed about very little, but I grew to look forward to our exchanges and became quite fond of him. Combined with the fact that he was in the right and the case against him was contemptible thuggery, that made representing him a pleasure.

Abe passed away a couple of months ago. His passing was untimely. He is missed by many, including me. My thoughts and prayers are with his family. I won't be answering any questions about the impact of his death upon the case, and I'll let you judge the character of his pursuer for yourselves.

Guys, please don't pick on James Woods. I know he seems like a vindictive douche, but he really is a nice guy… When he's not buried up to his eyelids in cocaine.

Mr. Woods got on the sweet Colombian sugar as a mere pre-teen, and has suffered from a crippling addiction into adulthood. This addiction leads him to behave like a scum sucking boil on the ass of society, but it's not the real him.

So please, when James Woods sues someone for hurting his fee fees, or gloats at a good man's death, or murders yet another hooker, just remember the he's probably just snorted a fistful of coke.

Woods is still trying to unmask the identity of Abe. Is there any legal point to doing that to a defendant that's dead? Like, even if Wods would need to know his identity to go after his estate for damages, wouldn't he need to win damages first and then get his name?

Ken, so sorry to hear about this loss. Smart savvy people are hard to find, and even harder to lose. I am amazed ( tho I shouldn't be) at the gall – unmitigated in this case- of people who believe it's their job to denigrate those around them.

Wait, let me get something clear… he (Edit: by he I mean James Woods) actually gloats about his suit, calling it a SLAPP by name? Does he not know what the acronym stands for, or does he actually revel in being a censorious douche abusing our legal system?

I'd say it's akin to someone actually labeling himself an SJW, except I can see that plausibly happening, so instead I'll say it's like someone calling his own actions genocide. Except, unlike James Woods, anyone in a position to make a decent attempt at genocide is probably talented enough at something or another to earn a sliver of respect despite being a terrible human being.

I'm sorry for the loss of your client, Ken, and even more sorry that he can no longer fight the good fight. As someone who's only really represented the state and business entities, I'm not really familiar with the nitty gritty of continuing suits after a client's death, and opposing party's death in a criminal prosecution tends to make the whole thing moot. To what extent can Woods actually continue the suit against his client's estate as he intends, and if the action survives the client's death, does that then allow you to file motions and counterclaims on behalf of the estate?

It occurred to me just after my editing period ended, what exactly are the differences between your typical anti-SLAPP statute and a common law abuse of process claim? I understand that anti-SLAPP statutes are limited in scope to suits involving speech and that anti-SLAPP statutes tend to be stronger than existing remedies for abuse of process, but I'm not familiar with the details. In a state without anti-SLAPP legislation, would it be possible (though obviously more difficult) to accomplish the same goals with an abuse of process claim?

Wait, let me get something clear… he actually gloats about his suit, calling it a SLAPP by name?

No, he just referred to the "appeal contesting my victorious SLAPP motion", when he meant the appeal from his victory at the anti-SLAPP motion hearing. Masnick calls that "flat out admit[ting] he filed a SLAPP lawsuit", but I think it's just unremarkable confusion/imprecision by a layman.

I hope Ken eventually lawsplains yesterday's move. I'm wondering whether or not there's an official executor or administrator of the estate yet. If not, then I would have expected an application for a stay, not a voluntary dismissal of the appeal.

Is the estate worthless? If so, then I guess it makes sense to dismiss the appeal, stop defending the case, and let Woods get a worthless default judgment. But if real Abe's bio matches his twitter bio, then I would expect his estate to have something. And if you're going to defend the case, then I would think following through on the appeal would still be the best way to go.

I don't understand how Abe's identity can be protected now. If the plan is to just let Woods get a $10M default judgment, then Woods is certainly entitled to learn (through post-judgment discovery) the identity of the estate so he can pursue execution of the judgment, isn't he?

In a state without anti-SLAPP legislation, would it be possible (though obviously more difficult) to accomplish the same goals with an abuse of process claim?

I'm not Ken, and I don't play him on TV.

So I hope here is enough to answer your question.

Anti-SLAPP statutes vary by state. Look up the term "SLAPP" in wikipedia and you'll find many details of those variants.

In particular, California's anti-SLAPP statute will give a defendant against a SLAPP suit much more than an abuse of process counterclaim would give them.

Among other things, CA's anti-SLAPP statute specifies that when defendant files a special motion to strike, all discovery comes to a screeching halt until the court resolves the motion. So, plaintiff must prove he has sufficient evidence to support his claim against defendant without forcing the defendant to provide any further evidence.

This is important, because a common tactic in SLAPP suits is to "discover defendant to death", or demand defendant produce documents and records to support plaintiff's claim, thereby costing defendant more time and money just to defend against the suit.

Another feature of CA's statute is that the special motion to strike must be resolved within a limited time period (60 days as I recall). So a plaintiff can't "drag out" a suit forever if defendant files an anti-SLAPP special motion to strike.

Yet another feature of CA's statute mandates loser pays opponent's costs once the anti-SLAPP motion to strike is filed. This prevents plaintiff in a SLAPP suit from costing defendant excessive money to defend himself by dragging out the lawsuit. It also punishes plaintiffs who bring SLAPP suits (ie: less than meritorious suits which are brought to prevent defendant from exercising free speech rights on a matter of public concern).

Abuse of process counter-claims don't carry those advantages for a defendant who brings them.

Woods is still trying to unmask the identity of Abe. Is there any legal point to doing that to a defendant that's dead? Like, even if Wods would need to know his identity to go after his estate for damages, wouldn't he need to win damages first and then get his name?

How does Woods know this anonymous defamer is really dead? How does Woods know this isn't just a tactic to allow the person behind Abe Doe to slink away without facing the music?

@Anon Y. Mous: the assertion that Abe is deceased was made in a court filing. It's possible that the people making the filing (i.e. the team of lawyers including Ken) are being dishonest, but (a) making such a claim in "Ken's living room" (i.e. here) might be considered rude, and (b) what lawyer is going to perjure themselves in making that claim and (c) if the court cannot take such filings as being true statements of happenings, the whole system collapses.

James Wood. What a flaming asshole. I wanted to use a lot more very vulgar words describing Mr. Wood, but they would all be redundant. So i'll just stick to flaming asshole. My only (very fervent) hope is that the dumbass decides to take on Ken.

I had pondered going on Twitter to express my opinion of Mr. Wood directly to him, but it would be a waste of time.

@Bob:

Guys, please don't pick on James Woods. I know he seems like a vindictive douche, but he really is a nice guy… When he's not buried up to his eyelids in cocaine.

Mr. Woods got on the sweet Colombian sugar as a mere pre-teen, and has suffered from a crippling addiction into adulthood. This addiction leads him to behave like a scum sucking boil on the ass of society, but it's not the real him.

So please, when James Woods sues someone for hurting his fee fees, or gloats at a good man's death, or murders yet another hooker, just remember the he's probably just snorted a fistful of coke.

That fistful of coke was most likely washed down with a quart or two of his favorite adult beverage. Mind you James, that hyperbolic statement is an opinion. I based that opinion on your portrayal of Bill Wilson, in "My Name is Bill W". That was some damn fine acting.

I don't understand how if someone dies, a defamation suit against him can proceed. And if it can, why can't his appeal to prevent his identity from being uncovered proceed? When Ken Lay died during appeal of his criminal conviction, the whole conviction was expunged. If people who have been found guilty can legally exonerate themselves by dying during an appeal to exonerate themselves, why can't someone protect their name by dying during an appeal to protect their name?

Think of it like any other civil suit. For a different example, if you cause an accident with my car and are killed in the accident, your death doesn't change the fact that I was (economically, and possibly physically) harmed by your actions. I can still attempt to collect from your estate, including by suing it, if necessary. In practice, of course, you'd have insurance, and I'd almost certainly collect from that instead–but if your liability went away with your death, the insurance would have no obligation to pay.

Civil suits are, by and large, intended to make the plaintiff whole. If Abe had defamed Woods, that would mean that Woods was harmed by Abe. There's a legal fiction that this harm can be repaired by paying money, which would be ordered if Woods prevailed. This can still happen, even though Abe is dead. By contrast, criminal law is intended to (1) punish the guilty, (2) deter people from offending, and (3) prevent the guilty from reoffending. Restitution is sometimes a component, but it isn't really the main thrust of it. None of these goals (with the possible exception of restitution) are meaningful if the defendant is dead.

If I recall correctly, Ken Lay died after the jury had found him guilty but before sentencing, so the conviction wasn't complete. If he'd been sentenced but died while an appeal was pending, his status as a convicted felon wouldn't have changed.

It's confusing when an actor known for asshole characters is a massive asshole in reality. You don't know which is more disappointing, their true personality or the fact they apparently aren't as good at acting as you thought. Adam Baldwin all over again.

@Jeffrey Deutsch

"Who's against men having rights?"

MRAs do get that courtesy to begin with, that and alimony payments are the only way that movement grows, it's not like people get inspired by Paul Elam.

@manta: As I understand it, when you sue someone you don't know, you generally try to get the court to authorize you to issue subpeonas to determine the identify of the person you are suing. The person whose identity you are trying to determine may come forward to contest the validity of your case without revealing his identity to you by having his lawyers confirm such privately to the court.

Thank you, David.
In a case like this, how would the court then proceed?
Ask Twitter to reveal to the court the identity?
If Twitter doesn't know (because e.g. the accused gave some fake credentials), how does it proceed?

Or let's make a more practical case: suppose you find this post libelous, and want to sue me. If I understood correctly, you go to court in order to force Ken (or whoever owns popehat) to reveal my identity to you (and to the court).
However, all Ken has is some e-mail address (and probably some IP addres): what happens then?

I don't believe he could be libeled by calling him a cocaine addict. Being a cocaine addict isn't a deal breaker for actors unless they don't show up for work on time or it affects the quality of their work. James "Don't Knock on My" Wood(s) has been working in the biz steadily since the late 1970's. The Sean Young era didn't even hurt his employment opportunities, or hers for that matter. No one in the biz cares if you snort mountains of cocaine, date women or men young enough to be your grandchildren, or are constant tabloid fodder. As long as you can do the work, they'll keep calling.

@Matthew Cline Back in the 1980s, there was a court in Tennessee that would accept a lawyer's word that somebody had died, if the deceased had lived in the county their entire life. However, if the deceased was an immigrant, then the Consul for the country that the deceased had immigrated from, needed to provide the paperwork that proved said individual was indeed deceased. Nevermind that said individual died in the local hospital.